Before an Employee Files a Legal Complaint …

An accusation of unlawful harassment is destructive to careers, disruptive to productivity and potentially catastrophic to business if there is legal action. And the stakes are significant, with the typical jury awards for sexual harassment cases reaching into the millions of dollars.

“Harassment cases are on the rise,” said Jodie-Beth Galos, principal attorney at Galos & Associates, her Millerton, N.Y., law firm, and a Senior Professional in HR. “And there aren’t a lot of legal protections in the workplace, especially with ‘at-will’ employers.”

Things don’t have to get to that point. Sexual harassment is often a manifestation of common behaviors that are overlooked, unaddressed or denied. Correcting some harassment situations in a way that is legally acceptable and ultimately beneficial for the organization can be accomplished by using a 360 assessment and executive coaching.

Deconstructing BehaviorThe first step in understanding, addressing and preventing unlawful harassment is to deconstruct the problem as a series of behaviors.

Except in cases of romantic intentions gone awry, harassment isn’t really about sex. In its simplest form, it’s bullying. When framed as bullying — a pattern of behavior — decoding a harasser’s modus operandi is similar to assessing for strengths and weaknesses.

Many of the same traits that seem right for leadership, that help a manager emerge as a candidate for executive advancement, also can cause negative behaviors when taken to extremes.

Whether this plays out in direct gender-based intimidation, inappropriate humor when asserting hierarchy or affronts to any of the other federally protected classes — such as race, color, nationality, disability, veteran status, genetic information, age, sex/gender/pregnancy or religion — the motivation is basically the same: power.

Bullying in all its forms is about abuse of power and disrespect for others. Galos sums it up as “watching someone else being uncomfortable and enjoying it.” Functionally, it plays out as, “I can get away with this, because I’m more powerful than you, and you’re helpless to stop me.”

“Having a male-dominated workplace is pernicious,” Galos said. “Wall Street, manufacturing and construction are classic settings. But harassment is not natural selection, because there are many organizations that forbid bullying cultures.”

Remediation through coaching can be far less expensive than firing the harasser and provide a more positive outcome for all concerned parties in some cases. The organization can retain and improve the performance of an otherwise valuable executive, the harasser can get his or her career back on track and the victim gets justice.

Coaching or Coddling?Coaching is demanding on the person being coached. When it’s framed as the last chance to change behavior before dismissal, coaching can be an emotional and life-changing experience.

Following delivery of 360-degree feedback, having the employee create a personal action plan is the first step. The plan might include multiple action points, such as “take time to meet with each person over the next month to review how their work fits into the overall department objectives.” Once that is drafted, the coaching engagement begins a months-long process of one-on-one dialogue between the coach and the client in which strengths and weaknesses revealed by the assessments are addressed.

A strength might be articulated as, “your results suggest that you are very good at spotting problems in procedures.” A weakness might be articulated as, “your results also suggest that you may point these problems out without considering the impact of your tone on others, who apparently view this as being a bit blunt and inconsiderate.”

The person being coached is responsible for evaluating his or her progress as new behaviors are put into practice day to day.

“I can imagine how this might be helpful,” said Sandra L. Shullman, a psychologist, executive coach and partner with the Executive Development Group. “However, HR and managers in charge need to think about how willing the affected members of the organization are to participate effectively.”

A coach to harassment victims and an expert in harassment cases, Shullman also has consulted with client firms seeking to reform harassers. She said 360s and coaching should be applied judiciously because using 360s as remediation could cast a negative light on assessments, decreasing their acceptance for positive development interventions. She also said these processes should never be a substitute for sanctions or the mandate to maintain appropriate behavior.

Assessing Harassing BehaviorCoaching is enhanced with 360-degree assessment feedback because it provides an objective baseline of information about how others in the organization perceive the client. In harassment remediation it’s no different.

Generally, the most common goals for using 360 feedback are: enhanced individual awareness; a better balance of skills within an individual; vision or mission clarification; preparing individuals for new roles; adaptability to rapid change; and increased team commitment.

None of these goals will be achieved with bullying behavior because it ruins relationships. People don’t forget, or forgive, an emotionally bruising experience. Therefore, organizationally it’s important to remove the idea that being smart or driven or even achieving results is enough, if the consequences damage another part or person in the organization.

When sexual harassment is framed as bullying and inappropriate use of power and control, a 360 supports the coach with accurate data that helps him or her clarify what’s going wrong and gives the harasser clear benchmarks and goals for improvement.

Assessments use questions to characterize the problem and to identify when someone has crossed the line into negative actions. For example, an assessment might have questions about applying pressure. If one of the questions reveals, “Being assertive when someone misses an objective,” that’s OK. The next question would be more situationally assertive, such as, “Complains when things don’t go right.” That could be OK, depending on the circumstances. But then there is the ogre question that reveals a behavior like, “Publicly criticizing people when they make an honest mistake.” That is rarely, if ever, going to be appropriate.

Galos said it’s important to direct the subject to get enough raters — peers, direct reports, bosses and family can be asked to anonymously rate the client. The executive is asked who his or her raters are and sent back to get more if one category comes up short.

It’s important for raters to focus on observations, not judgments. Stay away from 360 questions that ask for a conclusion. Instead, ask questions that seek an observation. Instead of asking, “how often do you see Paul as a bully,” ask, “how often does Paul get angry when things don’t go right?”

Asking questions this way should provide a more balanced picture of the person getting feedback, so the extent of the coaching need is well defined. It also helps identify things the person is doing right.

Consider whether raters will be completely honest; they may not be if they fear retribution from the assessment client.

“If the harasser has seriously violated civil or criminal law, there is likely to be a dilemma for the raters about how forthcoming and candid they can really be about an individual who may be perceived as vindictive,” Shullman said. “But if it’s a case of a series of ‘edging across the line’ of inappropriate behavior, with a willing learner, a good 360 could be helpful in gaining honest feedback.”

Deadlines are crucial in all phases of the coaching process to establish a serious expectation for the client’s work and improvement, and to demonstrate that the coaching engagement is a process with a finish line.

Coaching With Feedback DataAs with any assessment instrument, the data derived is only as valuable as the coaching it supports. For sexual harassment, coaching walks a fine line between legal interests and organizational development.

“When I give feedback, I don’t belabor the past,” Galos said. “I ask the person what she or he’ll be doing differently in the future, and I coach the harasser to coach, not demand.”

This behavioral approach can be a catalyst for changing long-term values. Reaching a positive point in coaching can turn around prior events of harassment and improve future job performance by showing the harasser that he or she can be more effective by mastering how to appropriately manage subordinates without being controlling or abusive.

“People may not have a model for how to give direction,” Galos said, “It’s challenging to model behavior you’ve never seen. The way adults learn, if you can change the way they do something so that they’re successful, that will change the way they think about it.”

Galos has worked in human resources and employment law for 35 years. Since starting her own practice 16 years ago, she has intervened in sexual harassment cases at scores of organizations. She said success is about 30 percent.

“I have gone back to clients and said, ‘[The harasser] doesn’t get it,’” Galos said. “If I have a sense that they have no desire or incentive to change, I suggest termination or I terminate myself from the engagement.”

“Many victims will often ask, ‘Can you just make them stop or understand that what they’re doing is wrong?’” Shullman said. “In these cases, the harasser can sometimes benefit from education and understanding the impact of their behavior.”

Talent leaders have to assess the magnitude of the harasser’s actions and impact, and if the situation is likely to be repeated, Galos recommends termination. However, there is also a possibility that the harasser is simply socially inept. “The problem is when it’s in the middle and the harasser is considered too valuable to terminate,” she said.

Shullman cites an example of a firm at which she provided confidential consultation that was involved with a public offering. Its CEO was guilty of routine harassment and bad behavior. The offender was worth millions to the organization due to the possible public transaction; firing was not viewed as an immediate option. Coaching, in that case, was a stopgap measure.

What Success Looks LikeAt the end of successful remedial coaching, the organization should expect that the workplace is a better space for all employees to do their jobs effectively. This can be measured with a subsequent feedback survey. For example, measures of success might be a 20 percent reduction in people saying they are looking for work elsewhere or a 15 percent increase in speed of response to customer inquiries.

The reformed harasser now has an action plan developed in collaboration with the coach to ensure that bullying will stop. The organization has a record of action that is not only admissible in court, but also an inoculation against litigation in the first place. A plaintiff’s attorney will see much less incentive when an organization presents proof of a formal remediation process.

“There are circumstances in which the client simply needs to learn enough to not do it again,” Shullman said. “In these cases, 360s and coaching might be very helpful.”

Harassment is a form of unlawful discrimination. It always has to be addressed in favor of the victim. However, it does not always mean that the harasser has to be fired. Talent managers can address the problem with the same toolkit they use to develop individuals and correct any other negative behavior, while complying with anti-discrimination regulations and avoiding far more expensive legal remedies.

Paul M. Connolly is owner of Performance Programs Inc., a personality and 360 assessment firm. He can be reached at editor@talentmgt.com.

Discrimination charges are a barometer of employees’ perception of fairness in the workplace. Find out how tracking them provides vital insight here.